Congressional debaters frequently propose amending the Constitution as a way to get their proposed legislation passed.
Policy debaters often off a “Constitutional Amendment” as a counterplan, arguing it would be better than to have Congress pass the plan or have the courts issue a ruling.
There are a number of problems with amending the Constitution. Amending the Constitution is a subject fraught with complexity and significant risk. The arguments against it span from procedural inefficiencies to potential long-term damage to the very fabric of American democracy. This essay will explore the many reasons why.
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Solvency Concerns
Firstly, there is a compelling argument regarding the ineffectiveness of constitutional amendments. Amendments often fail to bring about substantial legal changes and instead serve more as powerful symbols, akin to congressional resolutions or presidential proclamations. David A. Strauss, in his analysis, emphasizes that significant changes in a mature democracy are more likely to occur through sustained political and nonpolitical activities rather than through discrete supermajoritarian acts like constitutional amendments. This suggests that the resources invested in pursuing amendments might be better spent on legislative, litigation, or private-sector initiatives that can more effectively drive change.
Moreover, for any textual amendments to be truly effective, the underlying political institutions, referred to as the “small-c constitution,” must first undergo transformation. If these fundamental institutions remain unchanged, any alterations in the constitutional text are rendered largely ineffective. This highlights the necessity of addressing institutional reforms before considering textual changes to the Constitution.
Procedural and Practical Challenges
The process of amending the Constitution is fraught with uncertainty and a lack of control. A ConCon, for instance, presents numerous procedural challenges. The rules and agenda of such a convention are unpredictable, and there are no effective safeguards to ensure that it remains focused on its intended purpose. Historical precedents show that conventions can exceed their mandates, leading to significant and unforeseen changes. The 1787 convention, which resulted in the current U.S. Constitution, is a prime example where delegates disregarded their instructions, demonstrating the potential for a runaway convention.
Legal and procedural uncertainties could lead to extended court cases and unpredictable outcomes, frustrating the intended purposes of such conventions. This lack of control and predictability makes the prospect of a ConCon particularly daunting.
Social and Political Impact
The social and political impacts of amending the Constitution are also significant. A ConCon is likely to be dominated by special interest groups and media, leading to a divisive and confrontational process. Such an environment could destabilize the nation’s governance and erode public trust. Special interests and political polarization could heavily influence the outcomes, potentially leading to undesirable changes that do not reflect the broader public interest.
Furthermore, without a lasting social consensus, any amendment is likely to be evaded or interpreted narrowly, reducing its effectiveness. Historical examples, such as the Fourteenth and Fifteenth Amendments, illustrate how amendments can be rendered ineffective when there is no enduring support for their principles within society.
Long-term Implications
The amendment process is notoriously lengthy and often inefficient in addressing urgent issues. It can take years or even decades for an amendment to be adopted and ratified. The Twenty-seventh Amendment, for instance, was adopted more than two hundred years after it was first proposed. Even if amendments are adopted more quickly, their implementation and impact can still face significant delays and bureaucratic hurdles.
Frequent amendments or a ConCon could also trivialize the Constitution, turning it into an ordinary legislative document and undermining its symbolic and foundational significance. The Constitution’s brevity and generality allow diverse groups to coalesce around its broad principles. Introducing detailed specifics through amendments could diminish this unifying force and lead to inconsistencies that destabilize the coherence and unity of the Constitution, potentially undermining established rights and structures.
The Counterplan Links to Politics
A ConCon inherently links to politics due to the highly charged nature of the process and the significant stakes involved. The following points elucidate how a ConCon intertwines with political dynamics:
- Intense Partisan Conflict:
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- Diverse Interests and Partisan Clashes: A ConCon would bring together a wide array of political actors, each with their own agendas and interests. The process could become a battleground for partisan conflict as different groups vie to include their priorities in the Constitution. The potential for clashes between liberals and conservatives, special interest groups, and various advocacy organizations is immense. This could lead to a chaotic environment, reminiscent of national party conventions where emotions run high and group decisions are contentious.
- Media and Public Scrutiny: The modern media landscape would amplify the political tensions surrounding a ConCon. Extensive coverage by major news outlets and social media would turn the convention into a public spectacle, where every disagreement and controversy is broadcasted, further intensifying the political divide.
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- Influence of Special Interests:
- Lobbying and Influence: Special interest groups with substantial financial resources could exert significant influence over the proceedings of a ConCon. These groups might lobby for amendments that serve their interests, potentially overshadowing the broader public good. This risk is particularly high given the current environment of unlimited political spending and gerrymandering.
- Pressure on Delegates: Delegates to the ConCon could face immense pressure from both constituents and interest groups, making it difficult to reach consensus on contentious issues. This pressure could result in compromises that dilute the effectiveness of any proposed amendments or lead to the inclusion of controversial provisions that further polarize the electorate.
- Political Capital and Legislative Distraction:
- Consumption of Political Capital: The process of calling and conducting a ConCon would consume a vast amount of political capital. Lawmakers and political leaders would need to invest significant time and resources into the convention, potentially detracting from other pressing legislative priorities. This diversion of focus could stall progress on critical issues such as healthcare, education, and infrastructure.
- Potential for Political Backlash: The divisive nature of a ConCon could lead to a backlash from various political factions. Both supporters and opponents of the convention might mobilize their bases, leading to increased political tension and potentially undermining the stability of the current political environment.
Conclusion
The arguments against amending the Constitution are compelling. They highlight the ineffectiveness of amendments in driving substantial legal changes, the procedural challenges and uncertainties of the amendment process, the social and political conflicts that could arise, and the potential long-term damage to the Constitution’s integrity and symbolic significance. Given these concerns, it is clear that efforts and resources might be better spent on other forms of political and social engagement that can more effectively and predictably drive the desired changes within American society.